Legislative Updates to the Environmental Planning and Assessment Act

Following closely in step with the Strata Legislation Reforms, almost 40 years after the inception of the EP&A Act, the NSW State government have decided to update the legislation that dictates the planning and development of our State.

The Environmental Planning and Assessment Amendment Bill 2017 was assented to by NSW Parliament last November 2017 and is set to be implemented with steps to transition expected to start as early as March. With many changes taking effect from 1 March 2018 with the majority in force by the end of 2018 and final steps introduced by 2020.

The new Act is almost half the size of the current 1979 Act. Touted as an evolution rather than a revolution by the former Planning Minister Rob Stokes, with an aim to simplify and modernise the planning system.

The changes aim to deliver a clearer, more efficient and transparent system for the assessment of major projects and State Significant Developments in NSW.

The new Act is segmented into ten (10) parts instead of the existing eight (8) retaining similar numbering for parts 3-5 as the current Act, however adopting new section numbers using the decimal numbering system.

The amendments or reforms will include:

  • Local Strategic Planning Statements – Councils will now be required to prepare Local Strategic Planning Statements to establish a twenty (20) year vision for land use priorities and the broader aspirations of the council for its local government area.
  • Community Participation Plans – planning authorities will be required to prepare a community participation plan explaining how it will consult and engage with the community in plan-making and development decisions. Decision-makers will also be obliged to give reasons for decisions when granting consent to development applications.
  • Standardising Development Control Plans (DCPs) – a standardised format is yet to be released.
  • Enforcement of Complying Development – an aim to strengthening community confidence in complying development.
  • New remedies for breaches of the Act – Enforceable undertakings enable breaches of the EP&A Act to be fixed, compensated or efficiently resolved. It is a faster and cheaper regulatory option than prosecuting the original breach of the consent and are a commonly used tool by NSW government agencies.
  • Public Authorities to consult with other authorities prior to starting work on Infrastructure – major road and rail projects, requires consent under the Act including a requirement to obtain the advice or concurrence of agencies, such as Transport for NSW or Roads and Maritime Services.

For ease of reference, on the following page is a table of comparable sections between the old act and the proposed new Act:

Sec 55Planning proposalsSec 3.33
Sec 76Development that does not need consentSec 4.1
Sec 76ADevelopment that needs consentSec 4.2
Sec 76BDevelopment that is prohibitedSec 4.3
Sec 77ADesignated developmentSec 4.10
Sec 78AApplicationSec 4.12
Sec 79BConsultation and concurrenceSec 4.13
Sec 79CEvaluationSec 4.15
Sec 80DeterminationSec 4.16
Sec 80AImposition of conditionsSec 4.17
Sec 82AReview of determinationSecs 8.2, 8.3, 8.4, 8.5
Sec 82BReview where development application not acceptedSecs 8.2, 8.3, 8.4
Sec 82CReview procedures generallySec 8.5
Sec 82DEffect of review decisionsSec 8.5
Sec 83Date from which consent operatesSecs 4.20, 8.13
Sec 85What is a “complying development certificate”?Sec 4.27
Sec 89Determination of Crown development applicationsSec 4.33
Sec 91What is “integrated development”?Sec 4.46
Sec 93FPlanning agreementsSec 7.4
Sec 94Contribution towards provision or improvement of amenities or servicesSec 7.11
Sec 94AFixed development consent leviesSec 7.12
Sec 95Lapsing of consentSec 4.53
Sec 96Modification of consents—generallySec 4.55
Sec 97Appeal by applicant—development applicationsSecs 8.7, 8.10
Sec 106-109BExisting usesSecs 4.65 – 4.70
Sec 109DCertifying authoritiesSec 6.17
Sec 109EPrincipal certifying authoritiesSec 6.5
Sec 110Definitions (Definition of an Activity – Environmental Assessment)Sec 5.1
Sec 117Directions by the MinisterSec 9.1
Sec 119DPowers of investigation officers to enter premisesSec 9.16
Secs 121A-121ZSOrdersSecs 9.3 – 9.37 and Sch 5
Sec 125Offences against this Act and the regulationsSecs 9.37, 9.50
Sec 149Planning certificatesSec 10.7
Sec 149ABuilding certificatesSec 6.26

Some provisions will be moved to schedules and the Regulations where appropriate.

We will aim to keep you informed as to the Regulations once they have been released.

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